Oliver Wendell Holmes -- In Biddle (1927) -- On The Way The Pardon (And Commutation) Power Is Constrained By The Constitution

I've spent my cool, foggy and rainy Sunday morning, over hot coffee, ripe red cherries, a banana and icy fresh OJ, reading the law review articles cited for the proposition (now in Roger Stone's case) that Trump cannot lawfully engage in self-dealing pardons, not without violating the the framers' shared understanding of the "take care" and "faithfully execute" clauses of his oath.

Here are those 150 plus pages -- from Harvard Law, and Fordham Law, respectively -- if you are curious.

But in terms of actual positive US Supreme Court law, this below, from the legendary Oliver Wendell Holmes may be the clearest proof that Trump's action was unconstitutional. From that 1927 Biddle opinion then -- a bit:

. . . .We will not go into history, but we will say a word about the principles of pardons in the law of the United States.

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U. S. 87, 120, 121, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131. . . .

It cannot be said with a straight face that Trump avoiding his own public trial for crimes against the nation and her people is in any meaningful service of "We, the people's" properly understood public welfare.

Commutation is, in the US -- for a century now, at least, no longer a "grace" granted by a King, without any limit -- as a personal decision. No, in our modern democracy, it must not be used to insulate a President or other elected official from the rightful consequences of his or her prior criminal acts.

And so, even if the able Judge Amy Berman Jackson doesn't ultimately decide to invalidate Stone's commutation in her courtroom -- it is clear beyond doubt that President Biden will possess the power to "UN-commute" his sentence -- simply by saying Trump's decision involved self-pardoning behaviors, and violated the "take care" and "faithfully execute" clauses in the Constitution (even without ever prosecuting Trump for his own crimes).

These admonitions are there in the founding document, not just once -- but twice -- so they must mean. . . something.

नमस्ते